A-6202, APRIL 3, 1925, 4 COMP. GEN. 828

A-6202: Apr 3, 1925

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IS RECEIVING DISABILITY COMPENSATION OR OTHER BENEFITS FROM SUCH OTHER GOVERNMENT. WHEN IT IS SHOWN THAT THE PERSON. SERVED IN THE MILITARY SERVICE OF ONE OF THE GOVERNMENTS ASSOCIATED WITH THE UNITED STATES IN THE WORLD WAR AND IS NOW RECEIVING PENSION OR OTHER BENEFIT FROM SUCH OTHER GOVERNMENT ON ACCOUNT OF A TUBERCULOSIS DISEASE ALLEGED AND CLAIMED BY HIM TO HAVE BEEN INCURRED IN THE SERVICE OF SUCH OTHER GOVERNMENT. THERE IS NOTHING IN THE WORLD WAR VETERANS' ACT OF JUNE 7. SAID PROVISIONS ARE AS FOLLOWS: * * * THAT FOR THE PURPOSES OF THIS SECTION EVERY SUCH OFFICER. OR OTHER MEMBER EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT WHO WAS DISCHARGED OR WHO RESIGNED PRIOR TO JULY 2.

A-6202, APRIL 3, 1925, 4 COMP. GEN. 828

DISABILITY COMPENSATION TO BENEFICIARIES OF FOREIGN COUNTRIES THE FACT THAT A VETERAN SERVED IN THE MILITARY FORCES OF ANOTHER COUNTRY EITHER BEFORE OR SUBSEQUENT TO HIS SERVICE AT ANY TIME BETWEEN APRIL 6, 1917, AND JULY 2, 1921, IN THE MILITARY FORCES OF THE UNITED STATES, AND IS RECEIVING DISABILITY COMPENSATION OR OTHER BENEFITS FROM SUCH OTHER GOVERNMENT, DOES NOT PRECLUDE THE PAYMENT TO HIM OF DISABILITY COMPENSATION OTHERWISE DUE HIM UNDER THE WORLD WAR VETERANS' ACT ON ACCOUNT OF ACTIVE TUBERCULOSIS DISEASE DEVELOPING A 10 PERCENTUM DEGREE OF DISABILITY PRIOR TO JANUARY 1, 1925.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 3, 1925:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 6, 1924, REQUESTING DECISION AS TO THE AUTHORITY TO MAKE PAYMENTS OF DISABILITY COMPENSATION TO PERSONS OTHERWISE ENTITLED THERETO ON ACCOUNT OF AN ACTIVE TUBERCULOSIS DISEASE DEVELOPING A 10 PERCENT DEGREE OF DISABILITY PRIOR TO JANUARY 1, 1925, WHEN IT IS SHOWN THAT THE PERSON, EITHER PRIOR TO THE MILITARY SERVICE IN THE UNITED STATES FORCES OR ELSE SUBSEQUENT TO DISCHARGE FROM THE UNITED STATES FORCES, SERVED IN THE MILITARY SERVICE OF ONE OF THE GOVERNMENTS ASSOCIATED WITH THE UNITED STATES IN THE WORLD WAR AND IS NOW RECEIVING PENSION OR OTHER BENEFIT FROM SUCH OTHER GOVERNMENT ON ACCOUNT OF A TUBERCULOSIS DISEASE ALLEGED AND CLAIMED BY HIM TO HAVE BEEN INCURRED IN THE SERVICE OF SUCH OTHER GOVERNMENT.

THERE IS NOTHING IN THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 607, OR IN ANY OTHER LAW WHICH MAKES THE RECEIPT BY A VETERAN OF DISABILITY COMPENSATION FROM ANY OTHER SOURCE A BAR TO HIS RIGHT TO RECEIVE FROM THE UNITED STATES GOVERNMENT THE DISABILITY COMPENSATION PROVIDED BY LAW. THEREFORE, THE ANSWER TO THE QUESTION HERE PRESENTED INVOLVES ONLY A CONSIDERATION OF THE CONCLUSIVE PRESUMPTION PROVISIONS IN SECTION 200 OF THE ACT OF JUNE 7, 1924, 43 STAT. 615-616, REENACTED WITHOUT CHANGE IN THE ACT OF MARCH 4, 1925, 43 STAT. 1304. SAID PROVISIONS ARE AS FOLLOWS:

* * * THAT FOR THE PURPOSES OF THIS SECTION EVERY SUCH OFFICER, ENLISTED MAN, OR OTHER MEMBER EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT WHO WAS DISCHARGED OR WHO RESIGNED PRIOR TO JULY 2, 1921, AND EVERY SUCH OFFICER, ENLISTED MAN, OR OTHER MEMBER EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT ON OR BEFORE NOVEMBER 11, 1918, WHO ON OR AFTER JULY 2, 1921, IS DISCHARGED OR RESIGNS, SHALL BE CONCLUSIVELY HELD AND TAKEN TO HAVE BEEN IN SOUND CONDITION WHEN EXAMINED, ACCEPTED, AND ENROLLED FOR SERVICE, EXCEPT AS TO DEFECTS, DISORDERS, OR INFIRMITIES MADE OF RECORD IN ANY MANNER BY PROPER AUTHORITIES OF THE UNITED STATES AT THE TIME OF, OR PRIOR TO, INCEPTION OF ACTIVE SERVICE, TO THE EXTENT TO WHICH ANY SUCH DEFECT, DISORDER, OR INFIRMITY WAS SO MADE OF RECORD. PROVIDED, THAT AN EX- SERVICE MAN WHO IS SHOWN TO HAVE OR, IF DECEASED,TO HAVE HAD, PRIOR TO JANUARY 1, 1925, NEUROPSYCHIATRIC DISEASE, AN ACTIVE TUBERCULOSIS DISEASE, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMEOBIC DYSENTERY DEVELOPING A 10 PERCENTUM DEGREE OF DISABILITY OR MORE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) OF SECTION 202 OF THIS ACT SHALL BE PRESUMED TO HAVE ACQUIRED HIS DISABILITY IN SUCH SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921, OR TO HAVE SUFFERED AN AGGRAVATION OF A PREEXISTING NEUROPSYCHIATRIC DISEASE, TUBERCULOSIS, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMEOBIC DYSENTERY IN SUCH SERVICE BETWEEN SAID DATES, AND SAID PRESUMPTION SHALL BE CONCLUSIVE IN CASES OF ACTIVE TUBERCULOUS DISEASE, BUT IN ALL OTHER CASES SAID PRESUMPTION SHALL BE REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE; BUT NOTHING IN THIS PROVISO SHALL BE CONSTRUED TO PREVENT A CLAIMANT FROM RECEIVING THE BENEFITS OF COMPENSATION AND MEDICAL CARE AND TREATMENT FOR A DISABILITY DUE TO THESE DISEASES OF MORE THAN 10 PERCENTUM DEGREE (IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) SECTION 202, OF THIS ACT) ON OR SUBSEQUENT TO JANUARY 1, 1925, IF THE FACTS IN THE CASE SUBSTANTIATE HIS CLAIM.

IT WILL BE NOTED THAT THERE ARE TWO SEPARATE CONCLUSIVE PRESUMPTION PROVISIONS IN THIS SECTION. THE FIRST IS AS TO SOUNDNESS AT TIME OF ENTERING THE UNITED STATES SERVICE, AND PRECLUDES THE CONSIDERATION OF ANY EVIDENCE TENDING TO SHOW THAT THE DEFECT, DISORDER, OR INFIRMITY, ON ACCOUNT OF WHICH DISABILITY COMPENSATION IS CLAIMED, WAS INCURRED PRIOR TO THE ENTRANCE INTO THE UNITED STATES SERVICE, UNLESS SUCH DEFECT, DISORDER, OR INFIRMITY WAS MADE OF RECORD "BY PROPER AUTHORITIES OF THE UNITED STATES AT THE TIME OF, OR PRIOR TO, INCEPTION OF ACTIVE SERVICE.' 3 COMP. GEN. 555. THIS WOULD APPEAR TO ANSWER SO MUCH OF YOUR QUESTION AS RELATES TO THE CASE OF A VETERAN RECEIVING DISABILITY COMPENSATION OR OTHER BENEFITS FROM ANOTHER GOVERNMENT ON ACCOUNT OF SERVICE IN THE MILITARY FORCES OF SAID GOVERNMENT BEFORE ENTERING THE SERVICE IN THE MILITARY FORCES OF THE UNITED STATES.

THE SECOND CONCLUSIVE PRESUMPTION PROVISION IN THE SECTION APPLIES ONLY TO CASES OF ACTIVE TUBERCULOSIS DISEASE, AND HAS REFERENCE TO THOSE CASES IN WHICH THE DISEASE HAD DEVELOPED A 10 PERCENT DEGREE OF DISABILITY OR MORE PRIOR TO JANUARY 1, 1925. WITH RESPECT TO CERTAIN OTHER DISEASES ON ACCOUNT OF WHICH COMPENSATION IS AUTHORIZED IF THE DISEASE HAD DEVELOPED A 10 PERCENT DEGREE OF DISABILITY OR MORE PRIOR TO JANUARY 1, 1925, IT IS PROVIDED THAT THE PRESUMPTION THAT THE DISEASE WAS INCURRED OR AGGRAVATED IN THE SERVICE OF THE UNITED STATES BETWEEN APRIL 6, 1917, AND JULY 2, 1921,"SHALL BE REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE; " BUT WITH RESPECT TO CASES OF ACTIVE TUBERCULOSIS DISEASE IT IS SPECIFICALLY PROVIDED THAT "SAID PRESUMPTION SHALL BE CONCLUSIVE.' THIS PROVISION PRECLUDES THE CONSIDERATION OF ANY EVIDENCE--- HOWEVER CLEAR AND CONVINCING--- TO THE EFFECT THAT THE DISEASE WAS ACQUIRED OR AGGRAVATED SUBSEQUENT TO THE SERVICE IN THE MILITARY FORCES OF THE UNITED STATES BETWEEN APRIL 6, 1917, AND JULY 2, 1921.

ACCORDINGLY, IT MUST BE HELD THAT THE FACT THAT A VETERAN HAS SERVED IN THE MILITARY FORCES OF ANOTHER GOVERNMENT EITHER BEFORE OR SUBSEQUENT TO HIS SERVICE AT ANY TIME BETWEEN APRIL 6, 1917, AND JULY 2, 1921, IN THE MILITARY FORCES OF THE UNITED STATES, AND IS RECEIVING DISABILITY COMPENSATION OR OTHER BENEFITS FROM SUCH OTHER GOVERNMENT, DOES NOT PRECLUDE THE PAYMENT TO HIM OF DISABILITY COMPENSATION OTHERWISE DUE UNDER THE WORLD WAR VETERANS' ACT ON ACCOUNT OF ACTIVE TUBERCULOSIS DISEASE DEVELOPING A 10 PERCENT DEGREE OF DISABILITY PRIOR TO JANUARY 1, 1925.